Are you driving your client to loan sharks needlessly?

There are a number of companies that are loaning money to clients of attorneys on pending litigation. If you visit their web sites you will find statements that attorneys cannot ethically loan money to their clients. Some of these firms are charging credit card rates or higher for these loans. Many attorneys think that they cannot loan money to clients even for necessary medical or living expenses. This is not true in Texas. DR Rule 1.08(d)(1) provides that an attorney may advance money to a client for "necessary medical treatment or living expenses...". The attorney cannot charge interest on the transaction unless the client consents is in writing, the rate is fair to the client and the client is given the opportunity to contact another attorney (the latter may be a deal killer. You can still loan the money. You just cannot charge interest). DR Rule 1.08(a). For a more in depth analysis see this article from the University of California Law Review article on the ethics of loaning money to clients. It would be a good idea to check the law of the state where venue lies as some states flatly prohibit loans to clients.

ERISA Remedies

CIGNA HealthCare of Texas, Inc. v. Calad et al., and Aetna Health Inc. v. Davila held that the Employee Retirement Income Security Act (ERISA) completely took the place of all common law or statutory remedies of the employees and dismissed their claims for damages. The plaintiffs were left with only equitable remedies against the plan. Most plans have built in procedures to appeal benefit denial decisions that must be followed. Employees may in the event of a denial pursue equitable remedies in federal court. It has been suggested that they also demand arbitration under the Texas healthcare liability act, but this would seem to be a precluded legal remedy unless it was included in the plan.

LegalStuffBlog: Legal Research with Google and other cheap sources

LegalStuffBlog: Legal Research with Google and other cheap sources

Legal Research with Google and other cheap sources

Researching Unpublished COA Opinions in Texas has a trick for using Google to do legal research. Google indexes all the COAs in Texas except for Dallas. The site explains:

"Texas has fourteen courts of appeals. Luckily, the opinions in thirteen of those (all but Dallas) can be quickly searched in Google by including the following operator within your search query: site:courts.state.tx.us/opinions. If you want to focus your results on a particular court, such as the appellate district your case is in, just add that to the operator. For example, site:3rdcoa.courts.state.tx.us/opinions restricts the search to opinions coming out of the Austin Court."

The site also explains how to research the Dallas Court of Appeals. For those a little slow on the uptake like me all you need to do is paste site:courts.state.tx.us/opinions followed by your search term.Example: site:courts.state.tx.us/opinions ERISA would bring up all the Texas cases using ERISA. Play with it. It will not break you computer. Thanks to Erika Wayne for posting this this tip to legalresearchplus.com.

A word of caution, I attempted to check some language in Bonnie Cicio, Individually and As Administratrix of the Estate of Carmine Cicio, Plaintiff-appellant, v. John Does 1-8, Defendants,vytra Healthcare, and Brent Spears, M.d., Defendants-appelleesUnited States Court of Appeals, Second Circuit. - 321 F.3d 83 as reported in Google scholar by entering the cite in Google. It returned a page from Justia that listed two other cases in vol. 321, but not the case I wanted. I then ran the same query in Ask that brought up the correct citation in Justica. The citation entered was identical, because all I did was change from Google to Ask on the address bar. The questioned language was the same on both, motion to discuss instead of motion to dismiss. Of course, even bound reporters are sometimes misbound, but it pays to run a query through different search engines..

For doing research on a more national scope try, Justia or Google Scholar or JuriSearch or LLRX. Google Scholar has the advantage in that the citations are with hyperlinks that can be used without violating the copyright provisions of the other sites. This makes it easy to share cases by including a hyperlink. It, also, makes it possible to provide the court with a hyperlinked brief.

For those unfamiliar with Google Scholar to the right of the main Google search bar is a heading, "advanced search". A click on it will take you to a page that starts with several types of searches you can conduct. Scroll down and you will see, "Google Scholar" click it and away you go.

WILLINGHAM v. STATE, 897 S.W.2d 351

WILLINGHAM v. STATE, 897 S.W.2d 351 (Tex.Cr.App. 1995)

Cameron Todd Willingham, Appellant, v. The State of Texas, Appellee.

No. 71544.
Court of Criminal Appeals of Texas,
En Banc.

March 22, 1995.

Appeal from 13th Judicial District Court, Navarro County,

Kenneth A. Douglas, J.

Page 353

David Martin, Greg White, Waco, for appellant.

Page 354

Patrick C. Batchelor, Dist. Atty., Corsicana, Jim Vollers,

Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appellant Cameron Todd Willingham was convicted on August 21,

1992 of capital murder by murdering more than one person during

the same criminal transaction.  Tex. Penal Code Ann. s

19.03(a)(6)(A).  Two special issues were submitted to the jury

under Tex. Code Crim.  Proc. Ann. art. 37.071 § 2(b)(1) and

§ 2(e), and following the jury's verdict of guilty, the

trial court sentenced appellant to death.  Direct appeal to

this Court is automatic.  Tex. Code Crim.Proc.Ann. art. 37.071

§ 2(h).  We will affirm.

  Appellant brings four points of error for this Court to

review.  In point of error number one, appellant contends the

trial court erred in refusing to grant his Motion for Change of

Venue, in light of inflammatory statements made by the Navarro

County District Attorney.  Appellant asserts in his second

point of error that the trial court erred in refusing to admit

evidence offered by the defense to impeach the testimony of a

witness for the State.  In his third point of error, appellant

maintains the trial court erred in its charge to the jury

during the punishment phase of the trial by failing to instruct

the jury on the effect of parole, as parole would qualify as a

"mitigating circumstance" under the facts of this case.

Appellant contends, in point of error number four, that the

evidence is insufficient to support the jury's answers to the

special issues submitted in the punishment phase of the trial,

particularly:  (a) that the evidence is insufficient to support

the finding that appellant is a continuing threat to society,

and (b) that the evidence is insufficient to support a finding

that mitigating circumstances would not warrant a life

sentence.  Appellant does not challenge the sufficiency of the

evidence to support his conviction; therefore, the facts of the

offense will be discussed only in reference to the error

alleged in point of error number four.

  Appellant contends in his fourth point of error that the

evidence is insufficient to support the jury's answers to the

special issues submitted in the punishment phase of the trial.

Although appellant does not argue that the evidence was

insufficient to support his conviction for capital murder, a

review of the facts and other evidence underlying his

conviction is necessary, as this is the information which the

jury considered when answering the special issues in the

punishment phase of the trial.  James v. State, 772 S.W.2d 84,

88 (Tex.Cr.App. 1989), 493 U.S. 885, 110 S.Ct. 225,

107 L.Ed.2d 178 (vacated and remanded on other issue);

James v. State, 805 S.W.2d 415 (Tex.Cr.App. 1990) (on

remand);  cert. denied, 501 U.S. 1259, 111 S.Ct. 2915,

115 L.Ed.2d 1078 (1991).

  The evidence adduced at trial was that on December 23, 1991,

appellant poured a combustible liquid on the floor throughout

his home and intentionally set the house on fire, resulting in

the death of his three children.  Amber, age two, and twins

Karmon and Kameron, age 1, died of acute carbon monoxide

poisoning as a result of smoke inhalation, according to autopsy

reports. Neighbors of appellant testified that as the house

began smouldering, appellant was "crouched down" in the front

yard, and despite the neighbors' pleas, refused to go into the

house in any attempt to rescue the children.  An expert witness

for the State testified that the floors, front threshold, and

front concrete porch were burned, which only occurs when an

accelerant has been used to purposely burn these areas.  This

witness further testified that this igniting of the floors and

thresholds is typically employed to impede firemen in their

rescue attempts.

  The testimony at trial demonstrates that appellant neither

showed remorse for his actions nor grieved the loss of his

three children.  Appellant's neighbors testified that when the

fire "blew out" the windows, appellant "hollered about his car"

and ran to move it away from the fire to avoid its being

damaged.  A fire fighter also testified that appellant was

upset that his dart board was burned.  One of appellant's

neighbors testified that the morning following the house

Page 355

fire, Christmas Eve, appellant and his wife were at the burned

house going through the debris while playing music and

laughing.

  At the punishment phase of trial, testimony was presented

that appellant has a history of violence.  He has been

convicted of numerous felonies and misdemeanors, both as an

adult and as a juvenile, and attempts at various forms of

rehabilitation have proven unsuccessful.[fn1]

  The jury also heard evidence of appellant's character.

Witnesses testified that appellant was verbally and physically

abusive toward his family, and that at one time he beat his

pregnant wife in an effort to cause a miscarriage.  A friend of

appellant's testified that appellant once bragged about

brutally killing a dog.  In fact, appellant openly admitted to

a fellow inmate that he purposely started this fire to conceal

evidence that the children had recently been abused.

  Dr. James Grigson testified for the State at punishment.

According to his testimony, appellant fits the profile of an

extremely severe sociopath whose conduct becomes more violent

over time, and who lacks a conscience as to his behavior.

Grigson explained that a person with this degree of sociopathy

commonly has no regard for other people's property or for other

human beings.  He expressed his opinion that an individual

demonstrating this type of behavior can not be rehabilitated in

any manner, and that such a person certainly poses a continuing

threat to society.

  Appellant first contends the evidence is insufficient to

support the jury's finding that he is a continuing threat to

society.  In determining whether evidence is sufficient to

support a jury's answer to this special issue presented in the

punishment phase of a capital murder trial, this Court views

the evidence in the light most favorable to the verdict to

determine whether a rational trier of fact could have found the

elements of Tex. Code Crim.Proc.Ann. art. 37.071 § 2(b)(1)

beyond a reasonable doubt.[fn2]  Rivera v. State, 808 S.W.2d 80,

94 (Tex.Cr.App. 1991), cert. denied,

502 U.S. 902, 112 S.Ct. 279, 116 L.Ed.2d 231 (1991);  Hathorn

v. State, 848 S.W.2d 101, 115 (Tex.Cr.App. 1992),

cert. denied, ___ U.S. ____, 113 S.Ct. 3062,

125 L.Ed.2d 744 (1993);  Willis v. State, 785 S.W.2d 378,

386 (Tex.Cr.App. 1990), cert. denied, 498 U.S. 908,

111 S.Ct. 279, 112 L.Ed.2d 234 (1990).  Any evidence adduced

Page 356

at the guilt/innocence and punishment phases of trial can be

used by the jury when considering future dangerousness.

Willis v. State, 785 S.W.2d at 386;  Valdez v.

State, 776 S.W.2d 162, 166-67 (Tex.Cr.App. 1989),

cert. denied, 495 U.S. 963, 110 S.Ct. 2575,

109 L.Ed.2d 757 (1990);  Mitchell v. State, 650 S.W.2d 801,

812 (Tex.Cr.App. 1983), cert. denied,

464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984).  Often, the

circumstances of the offense alone are enough to sustain an

affirmative answer to this special issue.  Willis at

386;  Sosa v. State, 769 S.W.2d 909, 912 (Tex.Cr.App.

1989);  Moreno v. State, 721 S.W.2d 295, 302

(Tex.Cr.App. 1986).  A defendant's prior criminal record is

also relevant to future dangerousness.  Willis at 387;

Valdez v. State, 776 S.W.2d at 167;  Keeton v.

State, 724 S.W.2d 58, 61 (Tex.Cr.App. 1987).

  The facts of the offense are heinous and exhibit complete

disregard for human life.  Appellant saturated his house with a

combustible liquid, ignited the house, and left his three

children in the burning house.  We believe a rational trier of

fact could have answered "yes" to the second special issue

based solely on the circumstances of the offense.

Willis at 386;  Sosa v. State, 769 S.W.2d at

912;  Moreno v. State, 721 S.W.2d at 302.

  Criminal history and reputation evidence are also probative

of future dangerousness.  Willis at 387;

Valdez at 167;  Keeton v. State, 724 S.W.2d

at 61;  James v. State, 772 S.W.2d at 90. The fact

that appellant has been convicted of numerous offenses and has

failed all attempts of rehabilitation, as well as having

committed other violent acts apart from his criminal

convictions, are relevant considerations the jury could have

used to find that appellant would present a continuing threat

to society.

  Having reviewed all the evidence in the light most favorable

to the verdict, including trial evidence, circumstances of the

offense, and appellant's extensive criminal history, we find

sufficient evidence in the record for a rational trier of fact

to have concluded beyond a reasonable doubt that there was a

probability that appellant would commit criminal acts of

violence that would constitute a continuing threat to society.

  Appellant also contends in point of error four that the

evidence is insufficient to support a finding that mitigating

circumstances would not warrant a life sentence.  See

Tex. Code Crim.Proc.Ann. art. 37.071 § 2(e).  Appellant

fails to point to any mitigating factors which would persuade a

jury to answer this special issue in his favor and render a

life sentence.  Likewise, no mitigating circumstances are

apparent from a thorough reading of the record.  No authorities

are cited and no argument is made under this point of error;

therefore, nothing is presented for review on this point.

Tex.R.App.Proc. 74(f);  Woods v. State, 569 S.W.2d 901,

905 (Tex.Cr.App. 1978), cert. denied,

453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d 995 (1981);  Byrom v.

State, 528 S.W.2d 224, 226 (Tex.Cr.App. 1975).

Accordingly, appellant's fourth point of error is overruled.

  Appellant maintains in point of error number one that the

trial court abused its discretion in refusing to grant

appellant's motion for change of venue.  Appellant argues that,

especially in light of inflammatory statements made by the

Navarro County District Attorney, he could not receive a fair

trial.

  The trial court conducted a hearing on the motion to change

venue on August 3, 1992.  Testifying for appellant were Stacy

Willingham, appellant's wife;  and Tracy and Ronnie Kuykendall,

Stacy Willingham's brothers.  These witnesses testified that it

was their opinion that appellant could not receive a fair trial

in Navarro County due to the media coverage, which included a

televised statement made by the district attorney.  Appellant

introduced into evidence various newspaper articles pertaining

to the events of the fire.  Also introduced was a video tape of

the criminal district attorney, in which he commented that the

possible motive for appellant's commission of this offense was

that "the children were interfering with [appellant's] beer

drinking and dart throwing."

  The State then offered the testimony of three witnesses:

J.D. Kuykendall, appellant's father-in-law;  Mildred

Kuykendall, appellant's

Page 357

mother-in-law;  and Jim Gill, an attorney from Corsicana.

These witnesses testified that they believed the affiants

supporting the Motion to Change Venue were not credible due to

their lack of knowledge to support their statements.  They

further testified that appellant's witnesses possessed special

knowledge of the defendant, as a result of their relationship

with the defendant, which rendered their testimony less than

credible. These witnesses also testified that they believed

appellant could obtain a fair and impartial trial in Navarro

County.

  The trial court denied appellant's motion for a change of

venue, but the judge stated, ". . . with reference to the Change

of Venue:  I realize that it may crop back up, you know,

sometime [sic] down the road;  and if it does, we will handle

it as it comes up."  Neither during nor following voir dire of

the jury panel did Appellant reurge his motion to change venue.

  A change of venue is proper and consistent with principles of

due process when a defendant demonstrates his inability to

obtain an impartial jury or a fair trial at the place of venue.

Groppi v. Wisconsin, 400 U.S. 505, 510-11,

91 S.Ct. 490, 493, 27 L.Ed.2d 571 (1971);  Hathorn v. State,

848 S.W.2d at 109;  see Henley v. State, 576 S.W.2d 66,

69 (Tex.Cr.App. 1978).  A change of venue is the remedy to

jury prejudice resulting from extensive, widespread

inflammatory news coverage.  Beets v. State, 767 S.W.2d 711

 (Tex.Cr.App. 1987), cert. denied,

492 U.S. 912, 109 S.Ct. 3272, 106 L.Ed.2d 579 (1989);  Henley v.

State, 576 S.W.2d at 71.

  The mere fact that a crime was publicized in the news media

does not establish prejudice or require a change of venue per

se. Hathorn at 109;  Beets v. State, 767

S.W.2d at 743;  see Johnson v. Texas, 773 S.W.2d 322,

324 (Tex.Cr.App. 1989), aff'd on other grounds, ___

U.S. ____, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Rather, the

test is "whether outside influences affecting the community's

climate of opinion as to a defendant are inherently suspect."

Hathorn at 109;  Beets, 767 S.W.2d at 742;

Henley, 576 S.W.2d at 72.  In order to prevail in a

motion to change venue, a defendant must prove that publicity

about the case is pervasive, prejudicial and inflammatory.  A

defendant must demonstrate an "actual, identifiable prejudice

attributable to pretrial publicity on the part of the community

from which members of the jury will come."  DeBlanc v.

State, 799 S.W.2d 701, 704 (Tex.Cr.App. 1990), cert.

denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075

(1991);  Beets at 743;  Faulder v. State, 745 S.W.2d 327,

338 (Tex.Cr.App. 1987).

  When a trial court is presented with a motion to change

venue, the trial judge must act as fact-finder with regard to

the issue presented.  Tex. Code Crim.Proc.Ann. Art 31.04;

see Cook v. State, 667 S.W.2d 520, 522 (Tex.Cr.App.

1984).  The trial judge is in a better position than this

Court to resolve such issues as a result of his ability to

observe the demeanor of witnesses and scrutinize their

veracity.  Consequently, we will affirm the trial court's

judgment absent evidence of an abuse of discretion.

Hathorn at 109;  Aranda v. State, 736 S.W.2d 702,

705 (Tex.Cr.App. 1987), cert. denied,

487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988);  Freeman v.

State, 556 S.W.2d 287, 297 (Tex.Cr.App. 1977), cert.

denied, 434 U.S. 1088, 98 S.Ct. 1284, 55 L.Ed.2d 794

(1978).

  The newspaper articles offered by appellant demonstrated

nothing more than accurate reporting of a newsworthy occurrence

in Navarro County.  See Johnson v. State, 773 S.W.2d

at 325. Although the statement made by the district attorney

was televised, the record does not demonstrate that either the

newspaper or television reporting was widespread.  Nothing in

the record indicates an identifiable prejudice existed in the

community, nor does it show that the community climate of

opinion was inherently suspect.[fn3]

Page 358

Appellant has failed to prove that these articles and

televised statement amounted to pervasive, prejudicial, or

inflammatory publicity.  After reviewing the record, we

conclude that the trial court did not abuse its discretion in

overruling appellant's motion for change of venue and

proceeding with the trial in Navarro County.  Appellant's first

point of error is overruled.

  In his second point of error, appellant argues that the trial

court erred in refusing to admit evidence offered by the

defense to impeach the testimony of a witness for the State.

Johnny Webb, a State's witness, testified that appellant

confessed to him that he committed the offense;  that appellant

explained in detail how he poured lighter fluid throughout the

house, purposely burned one of the children, set the house on

fire, fled, and refused to go back into the house to rescue the

children.

  During appellant's cross-examination of Webb, no inquiry was

made concerning Webb's alleged interest in the case, and Webb

was not afforded an opportunity to explain or deny the

significance of any such circumstances.  Appellant then offered

the testimony of James McNally for the purpose of impeaching

the State's witness Webb.  The Court sustained the State's

objection to this testimony.  In a bill of exceptions, defense

witness McNally testified that Webb had at one time stated he

had been threatened by prison deputies, and that "he was hoping

to get out — get time cut or something was supposed to

happen with his lawyer in a couple of months."  When asked

whether Webb was threatened in connection with obtaining a

statement on the case at bar, no clear answer was given.

Appellant urged that this testimony was admissible to show

motive of the State's witness to perjure himself.  The State

reurged its objection and the trial court sustained the

objection.

  Impeachment of a witness means adducing proof that such

witness is unworthy of belief or credit.  Ransom v.

State, 789 S.W.2d 572, 587 (Tex.Cr.App. 1989);  cert.

denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765

(1990);  Jackson v. State, 516 S.W.2d 167, 175

(Tex.Cr.App. 1974).  The credibility of a witness may be

attacked, inter alia, by evidence that the witness is slanting

his testimony against or in favor of a party as a result of

personal interest or bias in the cause.  Tex.R.Crim. Evid.

612(b).

  What first must be established is a specific connection

between the witness' testimony and the cause, disclosing an

actual bias or motive, see London v. State, 739 S.W.2d 842,

846 (Tex.Cr.App. 1987), and this nexus must be

demonstrated by laying the proper foundation.  To lay a proper

predicate for impeachment the witness should be asked about any

possible interest or bias he may have before there is an

attempt to prove interest or bias otherwise.  See Green v.

State, 566 S.W.2d at 88.  The witness must first be

informed as to the circumstances supporting a claim of bias or

interest and must be given an opportunity to explain or deny

such circumstances. Tex.R.Crim.Evid. 612(b);  Green v.

State, 566 S.W.2d 578, 587-88 (Tex.Cr.App. 1978).

  No nexus was established between the admission made by

appellant to Webb and Webb's alleged hopes of early release.

Furthermore, trial counsel failed to lay a proper foundation

upon which to impeach the testimony of the State's witness

Johnny Webb. When a party does not lay the proper predicate for

impeaching a witness, it is not error to refuse to allow the

admission of such testimony.  See Moore v. State, 652 S.W.2d 411,

413 (Tex.Cr.App. 1983).  Appellant's second point

of error is overruled.

  Appellant contends in point of error number three that the

trial court erred in its charge to the jury during the

punishment phase of the trial by failing to instruct the jury

on the effect of parole, as parole would qualify as a

"mitigating circumstance" under the facts of this case.

Appellant posits that the jury discretion was impermissibly

channeled to a sentence of death, in violation of the Eighth

Amendment.  Appellant cites Lockett v. Ohio,

438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), which

holds that a jury may not be ". . . precluded from considering,

as a mitigating factor, any

Page 359

aspect of the defendant's character or record, and any of the

circumstances of the offense that the defendant proffers as a

basis for a sentence less than death," in support of his

argument that appellant did not receive individualized

treatment.

  The concept of parole eligibility bears no relationship to

the defendant's character or record, or circumstances of the

offense.  Smith v. State, 898 S.W.2d 838, 853

(Tex.Cr.App. 1995), and cases cited therein.  Rather,

mitigating evidence is defined as any evidence that a juror

might regard as reducing the defendant's moral blameworthiness.

Tex. Code Crim.Proc.Ann. art. 37.071 § 2(f)(4).  For

purposes of the Eighth Amendment, mitigating circumstances are

those circumstances of "the defendant's background and

character [which will support a] belief, long held by this

society, that defendants who commit criminal acts that are

attributable to [such circumstances] may be less culpable than

defendants who have no such excuse."  Penry v.

Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947,

106 L.Ed.2d 256 (1989);  Lewis v. State, 815 S.W.2d 560,

567 (Tex.Cr.App. 1991), cert. denied, 503 U.S. 920,

112 S.Ct. 1296, 117 L.Ed.2d 519 (1992).  Such evidence may be

considered by the jury when deliberating at punishment.

Penry v. Lynaugh, 492 U.S. at 328, 109 S.Ct. at 2951.

  Thus, we hold the matter of parole eligibility is not a

proper consideration for the jury's deliberations on

punishment. Smith, 898 S.W.2d at 853-54.  Accordingly,

we hold the trial court's refusal to charge the jury on the

effect of parole was proper.  Appellant's third point of error

is overruled.

  The judgment and sentence of the trial court are affirmed.

[fn1] Maria Tassie Malowney, an Assistant District Attorney for

Carter County, Oklahoma, listed the felonies and misdemeanors

with which appellant has been charged and/or convicted.  She

explained that the synopsis of the juvenile offenses cannot be

released, but that appellant has been involved in criminal

activity since he was fifteen or sixteen years of age.

Malowney testified that the felonies of which appellant was

convicted are as follows

  1) May 1986:  Second Degree Burglary

  Punishment:  probation, placed in a Nonviolent

  Intermediate Offender Act

  2) April 1987:  Grand Larceny

  Punishment:  two years probation and 60 days in

  the county jail

  Additionally, misdemeanors for which appellant was

  convicted are as follows:

  1) April 1986:  Carrying a Concealed Weapon and

  Public Intoxication

  Punishment:  4 days in the county jail and ordered

  to pay fine and costs

  2) May 1986:  Entering a Building with Unlawful

  Intent and Contributing to the Delinquency of a

  Minor (supplying paint for sniffing to a

  twelve-year-old child)

  Punishment:  ordered to pay restitution, 15 days in

  the county jail and six months probation, running

  concurrently

  3) November 1986:  Two counts of Contributing to

  the Delinquency of a Minor (supplying paint to a

  twelve-year-old child and an eleven-year-old

  child)

  Punishment:  60 days in the county jail

  4) November 1988:  Driving Under the Influence of

  Liquor and/or Drugs (substance was paint)

  Punishment:  One year probation on the condition he

  check himself into an in-patient rehabilitation

  program for paint abuse.

  5) February 1989:  Shoplifting

  Punishment:  Probation orders from April 1987

  Grand Larceny conviction and November 1988 DUI

  conviction vacated, sent to a special boot camp

  program, then given a two year sentence with all

  but 74 days suspended on the condition he 1)

  complete a substance abuse treatment program, 2)

  attend at least one AA or NA meeting per week, and

  3) take part in a urinalysis every week and a

  half.

[fn2] Article 37.071 § 2(b)(1) provides that:

  On conclusion of the presentation of the evidence,

  the court shall submit the following issues to the

  jury:

    (1) whether there is a probability that the

    defendant would commit criminal acts of violence

    that would constitute a continuing threat to

    society.

[fn3] Of the twelve jurors selected, four (4) remembered

reading "something" in the newspapers;  three (3) had not heard

anything or read anything about the case;  two (2) reported

that they had vaguely heard talk about the case;  one (1)

recalled hearing "the basics" of the case on television;  one

(1) remembered reading about the fire in the paper and knew

that the fire was set;  and one (1) believed she had heard what

everyone in Corsicana had heard. Furthermore, all of these

jurors testified that they could set aside anything they had

heard about the case and judge the case solely upon the

evidence heard at trial.

  CLINTON, Judge, concurring.

  In his third point of error appellant argues that the trial

court erred in failing to charge the jury at the punishment

phase of trial that, if sentenced to life imprisonment, he

would have to serve a minimum of 35 years in the penitentiary

before becoming eligible for parole.  He seems to argue that

this information in and of itself constitutes mitigating

evidence in contemplation of the Eighth Amendment to the United

States Constitution.  The majority rejects this argument on the

basis of its naked conclusion that "parole eligibility bears no

relationship to the defendant's character or record, or the

circumstances of the offense."  At 859.  I agree, at least,

that appellant fails to establish in his brief how minimum

parole eligibility constitutes constitutionally mitigating

evidence in this case.

  In my view, minimum parole eligibility is constitutionally

mitigating only to the extent that, in combination with other

evidence, it tends to show that the capital defendant will not

"commit criminal acts of violence that would pose a continuing

threat to society."  Article 37.071, § 2(b)(1), V.A.C.C.P.

See Smith v. State, 898 S.W.2d 838 (Tex.Cr.App. 1995)

(Clinton, J., dissenting, 898 S.W.2d at 864 & 867-68;  Maloney,

J., dissenting, 898 S.W.2d at 882-84).  It has no intrinsically

mitigating significance otherwise.  Id., (Maloney,

dissenting, 898 S.W.2d at 874-75).  Appellant does not argue

that he put on evidence to show, e.g., that for the duration of

his lengthy incarceration he will pose no threat to the prison

population or that by the time he is eligible for parole he

will not pose a threat to any facet of society.  Compare

Matson v. State, 819 S.W.2d 839 (Tex.Cr.App. 1991).

In combination with such evidence, information about minimum

parole eligibility is "indisputably relevant" to the issue of

future dangerousness.  Had appellant adduced such evidence, to

prevent him from also informing the jury of his minimum parole

eligibility date would likely have violated the Eighth

Amendment in much the same way it would violate due process.

Smith v. State, supra (Clinton, J., dissenting).

  Because he did not, however, I join the judgment of the

Court.  I do not join its opinion.

  MALONEY, J., joins this opinion.

  BAIRD, J., joins this opinion for the reasons stated in

Matson v. State, 819 S.W.2d 839

Page 360

 (Tex.Cr.App. 1991), but for the reasons stated in his

concurring opinion in Smith v. State, 898 S.W.2d 838

(Tex.Cr.App. 1995) (Baird, J., concurring), specifically does

not join that portion of the opinion referring to the

dissenting opinions in Smith, 898 S.W.2d 838 at 857

and 872 (Clinton, J., dissenting and Maloney, J., dissenting.).

  OVERSTREET, Judge, concurring.

  In point number three, appellant alleges, "The Trial Court

erred in its charge to the jury during the punishment phase of

the trial by failing to instruct the jury on the effect of

parole, as parole would qualify as a 'mitigating circumstance'

under the facts of this case."  Appellant's argument in support

of that point focuses upon the second special issue asking

whether, after consideration of all of the mitigating evidence,

there is a good reason for the defendant to be sentenced to

life imprisonment rather than death.  He notes that the United

States Supreme Court has grappled with the proper role that the

State may play in guiding juries in the assessment of

punishment versus an improper restriction of the sentencing

authority's ability to exhibit mercy.  He suggests that since

the State must restrict the conduct for which the defendant

becomes eligible for death, but must not restrict the sentencer

in consideration of factors that might weigh against imposing a

death sentence, the trial court's absolute refusal to give the

jury information about parole amounted to an instruction that

the jury may not, or should not, consider it.  Appellant

insists that such impermissibly channeled the jury's discretion

to a sentence of death in violation of the Eighth Amendment of

the United States Constitution.

  As appellant's claim avers error in terms of instructions on

parole being mitigating evidence, I agree with the majority's

conclusion that the trial court's refusal to charge the jury on

the effect of parole was proper because I do not believe that

such evidence is necessarily within the ambit of

Penry.   I also point out that this Court's previous

caselaw has held that a trial court properly refuses to

instruct the jury at the punishment stage of a capital murder

trial on the parole laws in Texas.  Elliott v. State,

858 S.W.2d 478, 490 (Tex.Cr.App. 1993), cert. denied,

___ U.S. ____, 114 S.Ct. 563, 126 L.Ed.2d 463 (1993);  Boyd

v. State, 811 S.W.2d 105, 121 (Tex.Cr.App. 1991),

cert. denied, 502 U.S. 971, 112 S.Ct. 448,

116 L.Ed.2d 466 (1991);  Knox v. State, 744 S.W.2d 53, 62-64

(Tex.Cr.App. 1987), cert. denied, 486 U.S. 1061,

108 S.Ct. 2834, 100 L.Ed.2d 934 (1988);  Andrade v. State,

700 S.W.2d 585, 587-88 (Tex.Cr.App. 1985), cert.

denied, 475 U.S. 1112, 106 S.Ct. 1524, 89 L.Ed.2d 921

(1986).

  Nevertheless, I point out that in Simmons v. South

Carolina, ___ U.S. ____, 114 S.Ct. 2187, 129 L.Ed.2d 133

(1994) the U.S. Supreme Court has recently found denial of the

constitutional right to due process and therefore reversible

error in a trial court refusing to inform a jury of the

defendant's parole ineligibility.  While we have initially

interpreted Simmons' application to our Texas capital

punishment procedures, see Smith v. State, 898 S.W.2d 838

 (Tex.Cr.App. 1995), I cannot agree with the majority's

broad blanket statement that "the matter of parole eligibility

is not a proper consideration for the jury's deliberations on

punishment."  Willingham v. State, 897 S.W.2d 351, 359

(Tex.Cr.App. 1995).  Pursuant to Simmons, and the Due

Process Clause of the U.S. Constitution, there are

circumstances in which it may be appropriate and/or necessary

to inform the jury of parole law in capital punishment

situations.  I also note that in the case at bar, during

punishment deliberations the jury sent out a note asking about

what a life sentence means in terms of years and about whether

parole could be denied.

  Article 37.07, § 4, V.A.C.C.P., enacted after an

amendment to the Texas Constitution, mandates that the trial

court, i.e. the judicial department, include instructions on

parole law in non-capital felonies;  thus, jury instructions on

parole law are now constitutionally permissible and are not in

violation of separation of powers principles.  I also note that

while Art. 37.07, § 4, V.A.C.C.P. provides for the jury to

be informed of various matters as to parole eligibility in

non-capital punishment proceedings, it does not prohibit

Page 361

such information from being provided to juries in capital

proceedings.  I also do not believe that the Legislature's

silence in not amending Article 37.071, V.A.C.C.P. to provide

for parole law instructions in capital proceedings should

necessarily be construed to mean that the Legislature

affirmatively meant that such instructions should not be given

in capital cases.  I am unwilling to conclude that such

silence absolutely indicates that the legislative body of

Texas reviewed our decisions in caselaw and somehow

affirmatively decided that this Court's opinions on the issue

represented its intentions.

  Because I agree that information about the effect of parole

is not necessarily within the ambit of Penry

mitigating evidence, I agree with the majority's disposition of

point of error number three.  I therefore concur only in the

results reached.

Lawrence "Larry" Myers and Ex Parte Elizondo

If you are interested in the Court of Criminal Appeals, Place 2, race and Lawrence "Larry" Meyers, you might want to read EX PARTE ELIZONDO, 947 S.W.2d 202 (Tex.Cr.App. 1996). He refers it as Elizondo v. State on his web site, but it is an enlightened and interesting opinion.

It is amazing that in 1996 there were still judges that did not believe that a defendent should not be able to raise innocence after conviction on appeal unless there was a constitutional violation. They didn't think that they had time to consider such a frivolous issue.